Intersectionality and Sexual Violence Laws in South Asia: Gaps, Challenges and the Way Forward

The author of this blog is Raktim Kundu, a second-year law student at Symbiosis Law School, NOIDA. He has a keen interest in Constitutional Law and Human Rights and can be contacted at raktimk605@gmail.com.


Introduction

Intersectionality is one of the approaches in feminist legal philosophy that helps to understand the application of the already present social, cultural, and economic identities in various domains of societal life. One such domain is the life and legal struggle of survivors of sexual violence.

To further the application of intersectionality in the given domain in the region of South Asia, two factors should be considered by all the constituent countries of the area. First, each country has its definition and application of identity shaped by the society's political, historical and sociological background. Secondly, the term "sexual violence" is broad enough to include both eye teasing, sexual harassment and gang rape. Therefore, it is crucial to understand and analyse the criminal justice system in the constituent countries of South Asia.

Analysis of South Asian Countries

In the substantive part, the criminal justice system was primarily formed by the British Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), so irrespective of the name of the penal codes, the sections and substance within it are majorly the same. In the procedural aspect, the political situation and societal norms influence the commission, enforcement and punishment.  

Afghanistan

The Taliban had taken over the sovereign power of the Islamic Republic of Afghanistan in February 2021 from a democratically elected government. Since then, there has been a rampant increase in the incidence of gender-based violence, which includes sexual violence. This has been the application of the Taliban's superstitious notion about women in the form of the legislation of the new ‘vice and virtue’ law (the complete opposite of the Law on Elimination of Violence Against Women, 2009) and the ignorant behaviour of courts  (violation of principles of natural justice like opportunity for fair hearing) and police.

The societal attitude towards sexual violence is evident from one of the incidents in which the family of a survivor of gang rape killed her to uphold the Pashtunwalli norm (according to which women are prohibited from extra-marital sex). This societal behaviour is also evident from the attitude of the media (including international), which fails to highlight the incidents of sexual violence.

The new ‘vice and virtue’ law aims to give legal validation to the commission of rape to women, transgender including religious minorities to suppress their voice for rights on all possible platforms like the human rights commission (which is abolished), shelter centres, police stations and women’s affairs office. 

The commission of sexual violence is not limited to the citizens of Afghanistan and extends to female aid workers

The first informers – the societal norms of Pashtunwalli guide the family. Then, the informer-police protects the perpetrator (in some cases allowing him to take revenge on the victim) and the justice giver – the court is ignorant of basic principles of natural justice, like a fair hearing. It gives punishments to the victim, including marriage to the perpetrator. Hence, there is practically no delivery of justice to the victim.  

The women, as a result of the intersectional systemic violence, have reported a feeling of insecurity. This feeling has caused three consequences:

  • increased the attempts to commit suicide 

  • Some are seeking asylum in other countries, like the UK

  • Acceptance of the commission of sexual offence.

In such circumstances that indicate a humanitarian crisis, an intersectional approach can be helpful to civil organisations to understand the main reasons for the prevalent societal structure, like lack of education and religious dominance. Still, it is impossible to see whether the government will adopt such an advanced approach without international pressure-induced monitoring.

Bangladesh

Despite facing political opposition, the present government has negotiated with delegates from the UN, civil organisations and courts to reform the existing legal structure. This step can be seen as a result of the increase in the number of reported cases of sexual violence. These conversations have highlighted the loopholes in the existing laws:

  • No law on sexual harassment in workplaces and educational institutions 

  • Disobedience of the directives of the High Court in 2009 and 2018 relating to sexual harassment and the two-finger test, respectively

  • Exclusion of the specific identity of women with disabilities from Disability Act, 2013

  • No specific provision to address sexual violence against transgender

  • Low conviction rate (3%)

  • No specific punishment against persons in authority

  • Delay in the resolution of cases by the fast-track court, Nari o Shisur Nirjatan Daman Tribunal

Following the conversations, the government has taken some steps, like:

Thus, the government has started taking proactive steps to remove loopholes like societal normalisation of sexual harassment and disrespect of the court’s directives. This shows that the intersectionality approach will be helpful and will be readily adopted by the government to further its positive steps towards the prevention of sexual violence by taking into account various identities like religion, caste and class. 

Bhutan

The criminal justice system is unique because it has taken important steps, such as making marital rape a crime in the category of felony and has mandated the payment of compensation to the victim (‘gao’). Moreover, to prevent repeated occurrences, there is an express bar on the issue of a marriage certificate if the person has previously paid Gao.

Besides, there are very few, if any, reported cases of sexual violence against racial minorities, like Jews, and against young girls.

However, it also suffers from various loopholes, like lower reporting of cases and exclusion of incidents, besides the following

The courts primarily resolve these loopholes, taking a victim-oriented approach rather than solely relying on the law. 

Given the specific socio-legal context, an intersectionality approach will be helpful if it is modified accordingly, thereby focusing on factors like economic, power, disability and sexual orientation.

India

The uniqueness of India is its diversity. This diversity is also evident in the various identities which intersect to form a psychological and emotional experience of a survivor of a sexual offence. Though the incidence of sexual offence varies across the states and union territories, yet the general identities like poverty, language, caste, class and gender are prevalent in the inherent structure of the country. 

The Bhartiya Nyaya Sanhita, 2023 takes into account some incidents of sexual violence like those which involve abuse of power, but also has some loopholes like no consideration of disabilities, poverty, marriage and caste. These loopholes are filled up by specific Acts like the Prevention of Sexual Harassment at Workplaces Act, 2013, which covers domestic workers and the unorganised sector (under section 3 read with sections 2(e) and 2(p)); the Protection of Children from Sexual Offences Act, 2012, Prevention of Atrocities Act, 1989; and the Rights of Persons with Disabilities Act, 2016.

The procedural laws, including BNSS, 2023, help to enforce the above substantive laws by providing various facilities and institutions like zero FIR, in camera proceedings, special courts and special prosecutors for child victims and Dalit women, victim compensation scheme, toll-free number, para-legal volunteers to assist the victim, etc.

Despite the above legal provisions, the law in fact is of mixed opinions, as sexual offences continue and very few cases are reported. This relates back to the intersectional factors involved in committing a crime. This aspect has been highlighted by the shift in approach undertaken by the Courts after the recent Supreme Court judgement in Patan Jamal Vali v. State of Andhra Pradesh. For example, the shift in interpretation of identity in Barju Shah v. State of Jharkhand  (relating to rape) to M. Sameeha Barvin v. The Joint Secretary, Ministry of Youth and Affairs (relating to discrimination).  

In India, there is a procedural lapse in accepting the intersectionality approach. Though substantive laws have been enacted for the prevention of sexual violence, without any procedural rules and regulations from the Union of India, as well as judicial activism, it is very difficult to implement the intersectionality approach to respect the identities of the victims and uplift the survivors of sexual violence. 

Myanmar

The politico-legal condition of Myanmar is very similar to that of Afghanistan, with the military junta adopting the mannerisms of the Taliban. 

The victims of sexual violence are mainly women, but they have various intersectional identities like age, sexual orientation and political ideology, ethnicity (Rohingya Muslims), poverty, marital status, and religion. The offenders are not only the accused but also the courts (as they delay the verdicts in cases relating to sexual offence by prioritising politically motivated instances), the police (who are ignorant of the incidents and further abuse the victim of custodial rape) and the patriarchal system inherent in the country (which include the social media), believing in ‘hpon’, that is, male purity. The motive behind the commission of sexual violence is mainly the suppression of voice of protestors, whether rights-oriented or political, and inducing a feeling of fear within communities. 

These conditions have led to the loss of confidence in the criminal justice system and, thereby, lesser reporting of incidents. 

Like Afghanistan, an intersectionality approach has to be applicable in Myanmar with international pressure only, otherwise, it is very difficult to practically imagine such application, given the socio-political attitude prevalent in the country against sexual violence.

Nepal

The substantive and procedural aspects of the criminal justice system against sexual violence are in some areas unique to Nepal, such as:

Besides the above, there are some loopholes, like there is a lack of express legislation regarding same-sex marriage, stalking, caste-based sexual violence and a lack of consideration of the economy as an identity factor.

The intersectionality approach will be helpful to legislators in taking into consideration identities like economic status, caste, and sexual orientation to modify the existing laws so that the positivist approach towards the prevention of sexual orientation can be appropriately implemented.

Pakistan

The criminal justice system regarding sexual violence has been analysed on the grounds of political, social and legal factors. 

The criminal justice system has seen a dramatic change in political power from British to Pakistan and from a military coup to a democratic government. It can be seen from the repeal of the Zina Ordinance, 1979, by the Women’s Protection Act, 2006. There is political turmoil, but no evidentiary proof regarding its impact on the legal system exists.

The societal attitude towards sexual violence is specific to honour killing and is more prominent in the provinces of Balochistan and Punjab. In the case of honour-based sexual violence, the commission of sexual acts is accepted on two grounds: honour and objectification of women. Other identities like ethnicity, caste and socio-economic disparity play a key role in upholding the honour in such sexual violence. 

There are various loopholes based on the specific identities of the victims, like no particular law on child molestation, ignorance of safeguards in rural areas due to tribal customs, tribal courts (jirgas), low conviction rate in child sexual abuse cases, and extra-judicial settlement of honour crimes by compromise between families. These loopholes hamper the smooth enforcement of safeguards within both substantive and procedural law like time-bound investigations, use of DNA evidence, special courts, women officers and women police stations, criminalisation of online sexual abuse, national registry, and expanded definition of rape. The judgements of the courts further improve these safeguards, like in Atif Zareef v. State, the Supreme Court invalidated the practice of the finger test. 

Given the above considerations, an intersectional approach will help to identify the various identities and factors prevalent in Pakistan, like traditional concepts of honour, caste, poverty, age and marriage. However, a lot depends on the awareness and education imparted to society and law enforcement agencies. 

Conclusion

Each region, with its unique blend of history, culture, and landscape, tells a story that is both distinct and essential to the tapestry of the world.

Merely using the intersectional approach as an analytical tool is analogous to labelling people and situations who did not fit the common understanding without even understanding their complete story. Therefore, as highlighted in this blog, it is vital for an in-depth quantitative and qualitative study focused solely on South Asia, especially the inter and intra-country specific incidents, to achieve the aim of prevention of sexual violence, substantive development and gender equality holistically. This study will surely fill up the lacunae of a region-specific international regulation, which is needed in light of the uniqueness of women's identities specific to the region and dissimilarities in legal approaches by different countries.  

References

Afghanistan:

Bangladesh:

Bhutan:

Myanmar:

Nepal:

Pakistan:

Ritika Sharma

Founder

I am Ritika Sharma, a dedicated researcher with an LL.M. from the prestigious Geneva Academy, Switzerland, where I specialised in International Humanitarian Law and Human Rights. I was honoured with the Henry Dunant Research Prize 2024 for my work exploring the intersection of International Humanitarian Law, Gender and Religion. My journey has taken me to the United Nations Human Rights Council, where I have spoken three times on critical issues like the Myanmar conflict and gender-based violence during my Advocacy internship with Human Rights Now. Currently, as an Advocacy Fellow with Women of the South Speak Out (WOSSO), I am working to amplify voices and create meaningful change by working on a project on the intersectionality of sexual violence against women. Through my platform, HUMAN.DROITS, I address socio-legal challenges while exploring broader human rights and humanitarian issues. My favourite line from the book 'Ignited minds' which mirrors my thoughts is "What actions are most excellent? To gladden the heart of a human being, to feed the hungry, to help the afflicted, to lighten the sorrow of the sorrowful and to remove the wrongs of the injured".

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